Are Liberals Shooting Themselves in the Foot with Citizens United Sequel from Montana?

On June 14, the Supreme Court will consider what to do about that Montana case in which the state Supreme Court upheld corporate spending limits in its state elections despite Citizens United. The Court basically has three options: it could decline to hear the case (and lift the current stay) on the case; it could grant the writ of certiorari, setting the case for argument; or it could summarily reverse (that is, reverse without holding a full hearing, with perhaps some dissents from that summary reversal coming from the Court’s liberals).

I don’t know a single knowledgeable observer who thinks option 1 is possible: declining to hear the case and allowing the Montana decision to stand. The Supreme Court already granted a stay of the Montana ruling, and one of the key factors in granting a stay is likelihood of success on the merits. Even Justice Ginsburg (in her statement for herself and Justice Breyer granting the stay) seemed to believe that under Citizens United Montana was likely to lose and it would take overturning Citizens United for Montana to win.

The fight now is between option 2 (which will almost certainly lead to a reversal of the Montana Supreme Court after briefing and oral arguments with some dissents) and option 3 (which will almost certainly lead to a reversal of the Montana Supreme Court without further argument with some dissents).

Montana had lots of amicus support in which the amici went through the motions of arguing against cert., but where the real argument in the briefs goes something like, well, if you are going to decide the case, you should at least set it for a full argument. The betting here seems to be that this will allow for a full airing of the claims against how Citizens United has worked out so far, and the outside chance of peeling off Justice Kennedy from the majority.

What this calculation doesn’t include is the possibility that the Court could actually make things worse if this goes to a full hearing and there is a majority opinion. (And believe me, it could get even worse, such as having the Court express doubts about the constitutionality of contribution limits applied to corporations or in other ways).

Here’s what I wrote about a similar issue (when to seek review of a bad lower court ruling in the Supreme Court) in a piece I had in Slate a few years ago called “How Liberals Can Win By Losing at the Roberts Court:”

1. Stay out of the Supreme Court, even if you lose in the lower court. Sometimes lower courts reach decisions that cry out for correction. In 2007, for example, Justice Richard Posner wrote an abysmal opinion for a 7th Circuit panel upholding Indiana’s strict voter identification law against a constitutional challenge. Judge Posner’s opinion belittled the value of the right to vote, and the dissent called the Indiana law “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” The plaintiffs, the ACLU, and others appealed the case to the Supreme Court. Seeing Posner’s language, and hoping that Justice Anthony Kennedy would join the more liberal justices on the Supreme Court in outrage over the partisanship surrounding these laws, I urged the court to take the case. What a mistake! The court affirmed the 7th Circuit, making the bad law apply to the entire country, and not just a part of it.

A similar dynamic played out with a Vermont campaign finance case. Supporters of the state’s strict campaign finance law won in the 2nd Circuit and got the case sent back to the trial court for further proceedings. Challengers to the campaign finance law then petitioned for the Supreme Court to hear the case. Incredibly, the law’s supporters joined the call for the case to be heard by the Supreme Court, hoping the court would make it easier for other states to pass tough campaign finance laws. The court obliged the calls for the case to be heard—and then issued a decision siding with the law’s challengers, striking down Vermont’s contribution and spending limits.

The takeaway lesson is that it is better to lose in a lower court, even though it creates a bad precedent, than to lose in the Supreme Court, which creates a bad—and nationally binding—precedent.